For a Holistic and Systemic Approach to IP Law

Abstract

It is almost superfluous to point out how complicated the overall IP regulatory framework has become compared to the classic representation thereof set out in the great Paris and Berne Conventions, and related national legislations at the end of the 19th century – a situation that has intensified especially in the past 50 years with the unrelenting emergence of new technologies and forms of communication. In short, the intrinsic diversity of the subject matter, function and key features of the single fundamental paradigms (patents, trademarks and copyright) has been more and more ‘‘aggrieved’’ by: (a) the internal diversification of the paradigms themselves (just think of the variety of models for protecting technological innovation or the array of neighbouring rights regimes within copyright law); (b) the increasing reciprocal ‘‘hybridisation’’ and overlapping of the paradigms in question (just think of the multiform protection for industrial designs); and (c) the acknowledgement of the necessary ‘‘interference’’ of competition law (unfair competition and antitrust) with IP law. All this, moreover, being the target of an ever-growing regulatory deluge, both domestic and international, in particular at the EU level. Now, such ongoing fragmentation of the IP regulatory framework has fostered the rise of a line of thought (and teaching) that seeks to construe the single IP paradigms in isolation: not just one from the other but also from the overall regulatory framework concerning the activities and interests involved in the exercise of intellectual property rights – a framework that obviously includes, at its apex, constitutional principles. That ‘‘separatist’’ trend (which can realistically be associated with a method of rulemaking increasingly inspired by sectorial interests and thus ever more